Guarding the Gates: Admissibility of Expert Evidence in Federal and Wisconsin Courts

Daubert Expert Deposition Topics

The deposition will have much in common with pre-Daubert depositions. Its goal is the same: to build a record of gaps in qualifications, foundation methodology, or reasoning. The subjects may include:

• a precise explanation of each step in the expert's reasoning, methodology, or application of principles, leading up to each conclusion;
• the factual bases and assumptions used by the expert;
• the sources of fact bases/assumptions;
• other fact sources that were available, but not used (for example, especially when the expert relies upon facts from his or her client);
• standard, principle, or reasoning that allows the expert to rely on his or her client for important assumptions;
• whether the method or reasoning consists of a testable hypothesis;
• whether the hypothesis has been tested and the results;
• what the test was, whether it can be reproduced, and whether there are other test protocols that have been used or described in professional literature to test this hypothesis;
• whether the expert knows of authoritative texts or periodicals that are published in the expert's field;
• publications used in the expert's education, practice, or teaching;
• whether publications are peer reviewed;
• what publications support the expert's work in the case;
• whether the expert's work in this case was subject to peer review;
• what professional standards apply to the expert's field;
• how, if at all, standards apply to the expert's work;
• how does the expert explain departure from any standards;
• whether the expert's method, reasoning, and application of principles is generally accepted and why;
• all sources - publications, standards, other - that one could look to in order to test the expert's work here;
• the relationship of the technique to methods that have been established to be reliable;
• the qualifications of the expert to meet standards and/or methodology;
• the nonjudicial uses to which the method has been put;
• whether the testimony is based "directly on legitimate, preexisting research unrelated to the litigation";
• objective sources for each step in the methodology; and
• objective sources for each factual assumption.

Additional evidence resources from CLE Books

CLE Books offers two handy resources that can help guide attorneys through courtroom challenges to the admissibility of expert testimony, as well as a variety of other types of evidence.

The Wisconsin Rules of Evidence - A Courtroom Handbook covers every section of the Wisconsin Rules of Evidence, providing the full text of each rule, the complete Judicial Council Committee Notes to the rules, and annotations for all of the important Wisconsin evidentiary cases. Designed for use at trial, the Handbook also includes useful features, such as tabs with topical headings, to help attorneys locate applicable evidentiary rules and cases quickly and efficiently.

CLE Books also publishes a compact, unannotated compilation of the rules - Wisconsin Rules of Evidence: 2000 Pocket Edition. Recently updated to include amendments made to the rules by legislation and supreme court orders through 1999, this pocket-sized booklet is an essential resource for every trial attorney.

Wisconsin Lawyer